New FL resident...use prior state exemptions or federal?

[limonrod]

Hello all.

I thought I knew the answer to my question, however after doing some further research, I am not so sure

Brief history: We moved to FL from GA in Sept 2012. We had lived in GA for about 5 years. My hubby just filed Chpt 7 in FL, using GA exemptions, since we have not lived in FL for 2 years. He is filing alone, pro se. I successfully, with the help of the Nolo Book and this site, filed Chpt 7 in GA almost 2 years ago, pro se, alone.

My question is, was my hubs correct in using GA exemptions, or should he have used Federal exemptions? In researching today, this is what I found....

Georgia’s exemptions are limited to debtors whose “domicile has been located in Georgia for the 180 days immediately preceding the date of the filing of the bankruptcy petition or for a longer portion of such 180 day period than in any other place.” Ga. Code Ann. § 44-13-100(b). Few nonresident debtors will be eligible.

And also this:

Georgia has opted out of the federal exemptions for debtors who have been domiciled in Georgia “for the 180 days immediately preceding the date of the filing of the bankruptcy petition or for a longer portion of such 180 day period than in any other place.” Ga. Code Ann. § 44-13-100(b).

Debtors to whom that does not apply will not qualify for Georgia's state exemptions and will use the federal exemptions.

We don't have any real property anymore (was foreclosed on and surrendered in GA), and the only significant thing of value that he now has is his truck, which is titled in his name alone, and has an approximately $4,000 lien. According to KBB, his truck is worth somewhere around $10,000 or so, not taking into consideration its diminished value for 2 previous accidents that the truck was involved in.

GA exemptions for motor vehicles are more favorable than FL exemptions, and the Federal exemptions are even better. I figured that even with GA exemptions, in using the motor vehicle exemption ($3500), unused real property exemption allotted to other property ($5,000) and wild card ($600), his truck should be safe. If we (he) is able to use Federal exemptions that would greatly reduce my stress levels and anxiety about his truck!

Can the experts chime in on this one please? If it turns out that he cannot use GA exemptions because of GA's residency requirements and instead has to use Federal exemptions, then we (he) will just amend Schedule C to indicate Federal exemptions.

Thank you in advance for your help!

[justbroke]

Almost all states require you to be domiciled in that State in order to use that State's exemptions. In your case, GA allows you to use the GA Exemptions if you have lived the majority of the last 180 days in GA. That does not appear to be your case since you have been domiciled in FL for over a year (if you moved to FL in September 2012).

The problem is the complexity of not having lived in Florida for 2 years (730 days)! This is what I call the donut-hole where you are in limbo! According to the Bankruptcy Code, you go back 2 years, and then you use the State where you spent the majority of the 180 days. That would be Georgia, in your case. However, Georgia requires residency within the last 180 days of filing So, that means you can't use Georgia.

In this case, you would use the Federal Exemptions even though Florida doesn't allow them. You use the Federal when you can't use any other State's exemption scheme.

So you would amend to use the Federal Exemption Scheme found in 11 USC 522. Make sure that you pay the amendment fee when you file the amendments. Also, make sure you serve the amendments on the appropriate parties to the Bankruptcy. (For certain, it's the Trustee and UST that you must serve. You may be required to serve all the creditors as well.)

Georgia 44-13-100 Exemption for purpose of bankruptcy.
b) Pursuant to 11 U.S.C. Section 522(b)(1), an individual debtor whose domicile is in Georgia is prohibited from applying or utilizing 11 U.S.C. Section 522(d) in connection with exempting property from his or her estate; and such individual debtor may exempt from property of his or her estate only such property as may be exempted from the estate pursuant to 11 U.S.C. Section 522(b)(2)(A) and (B). For the purposes of this subsection, an 'individual debtor whose domicile is in Georgia' means an individual whose domicile has been located in Georgia for the 180 days immediately preceding the date of the filing of the bankruptcy petition or for a longer portion of such 180 day period than in any other place. - See more at: http://www.jacobymeyersbankruptcy.co....E884EOwb.dpuf

(justbroke's notes: this donut-hole was created because creditors, I mean, Congress, did not want people moving to Florida with their cash, purchasing a home, waiting 91 days, and then getting Florida's very generous "unlimited" homestead exemption. Remember Bernie Madoff and his wife? Anyhow, this donut-hole makes it a little more complex to understand which exemption scheme to use.)

[limonrod]

Thank you for your response justbroke!